BURLEY TERMS OF SERVICE
Last Updated: 09/30/2020
These Terms of Service (“Terms”) apply to your access to and use of the website and other online products and services (collectively, our “Site”) provided by Burley Design LLC (“Burley” or “we”). If you use our Site to purchase any of our products (collectively, our “Products”), such purchase is governed by these Terms, including the Terms of Sale set forth in Section 11. By using our Site, you agree to these Terms, including the mandatory arbitration provision and class action waiver in Section 16. If you do not agree to these Terms, do not use our Site.
We may supply different or additional terms in relation to some of our Products or certain features of our Site, and those different or additional terms become part of your agreement with us if you use those Products or features of our Site. If there is a conflict between these Terms and the additional terms, the additional terms will control for that conflict.
We may make changes to these Terms from time to time. If we make changes, we will provide you with notice of such changes, such as by sending an email, providing a notice on our Site, or updating the date at the top of these Terms. Unless we say otherwise in our notice, the amended Terms will be effective immediately, and your continued use of our Site after we provide such notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop using our Site.
If you have any questions about these Terms, our Site, or our Products, please contact us at [email protected].
You must be at least 18 years of age to use our Site. If you use our Site on behalf of another person or entity, (a) all references to “you” throughout these Terms will include that person or entity; (b) you represent that you are authorized to accept these Terms on that person’s or entity’s behalf; and (c) in the event you or the person or entity violates these Terms, the person or entity agrees to be responsible to us.
3. User Accounts and Account Security
You may need to register for an account to access some features of our Site. If you register for an account, you must provide accurate account information and promptly update this information if it changes. You also must maintain the security of your account and promptly notify us if you discover or suspect that someone has accessed your account without your permission. We reserve the right to reclaim usernames, including on behalf of businesses or individuals that hold legal claim, including trademark rights, in those usernames.
4. User Content
Our Site may allow you and other users to create, post, store and share content, such as messages, text, photos, videos, and other materials (collectively, “User Content”). Except for the license you grant below, you retain all rights in and to your User Content, as between you and Burley.
You grant Burley and any future subsidiaries and affiliates a perpetual, nonexclusive, royalty-free, worldwide, fully paid, and sublicensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform and display your User Content and any name, username or likeness provided in connection with your User Content in all media formats and channels now known or later developed without compensation to you. When you post or otherwise share User Content on our Site, you understand that your User Content and any associated information (such as your first name or profile photo associated with a product review or caption associated with a photo you share) may be visible to others.
You may not create, post, store or share any User Content that violates these Terms or for which you do not have all the rights necessary to grant us the license described above. You represent and warrant that your User Content, and our use of such content as permitted by these Terms, will not violate any rights of or cause injury to any person or entity. Although we have no obligation to screen, edit or monitor User Content, we may delete or remove User Content at any time and for any reason without notice.
5. Prohibited Conduct and Content
You will not violate any applicable law, contract, intellectual property right or other third-party right or commit a tort, and you are solely responsible for your conduct while using our Site. You will not:
- Engage in any harassing, threatening, intimidating, predatory or stalking conduct;
- Impersonate or post on behalf or any person or entity or otherwise misrepresent your affiliation with a person or entity;
- Copy, reproduce, distribute, publicly perform or publicly display all or portions of our Site, except as expressly permitted by us or our licensors;
- Modify or otherwise make any derivative works based upon our Site;
- Reverse engineer any aspect of our Site or use our Site other than for its intended purpose or in any manner that could interfere with, disrupt, negatively affect the functioning of our Site;
- Use any data mining, robots or similar data gathering or extraction methods designed to scrape or extract data from our Site or use any applications that interact with our Site;
- Bypass or ignore instructions contained in our robots.txt file; or
- Use our Site for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms.
You may also post or otherwise share only User Content that is nonconfidential and that you have all necessary rights to disclose. You may not create, post, store or share any User Content that:
- Is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory or fraudulent;
- Would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any local, state, national or international law;
- May infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
- Contains or depicts any statements, remarks or claims that do not reflect your honest views and experiences;
- Impersonates, or misrepresents your affiliation with, any person or entity;
- Contains any unsolicited promotions, political campaigning, advertising or solicitations;
- Contains any private or personal information of a third party without such third party’s consent;
- Contains any viruses, corrupted data or other harmful, disruptive or destructive files or content; or
- In our sole judgment, is objectionable, restricts or inhibits any other person from using or enjoying our Site, or may expose Burley or others to any harm or liability of any type.
Enforcement of this Section 5 is solely at Burley’s discretion, and failure to enforce this Section 5 in some instances does not constitute a waiver of our right to enforce it in other instances. In addition, this Section 5 does not create any private right of action on the part of any third party or any reasonable expectation that our Site will not contain any content that is prohibited by such rules.
6. Ownership; Limited License
Our Site, including the text, graphics, images, photographs, videos, illustrations and other content contained therein, are owned by Burley or our licensors and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, all rights in and to our Site are reserved by us or our licensors. Subject to your compliance with these Terms, you are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Site for your own personal, noncommercial use. Any use of our Site other than as specifically authorized herein, without our prior written permission, is strictly prohibited, will terminate the license granted herein and violate our intellectual property rights.
Burley, Burley Design, and our logos, our product or service names, our slogans and the look and feel of our Site are trademarks of Burley and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned on our Site are the property of their respective owners. Reference to any products, services, processes or other information by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by us.
You may voluntarily post, submit or otherwise communicate to us any questions, comments, suggestions, ideas, original or creative materials or other information about Burley or our Products or Site (collectively, “Feedback”). You understand that we may use such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you, including, without limitation, to develop, copy, publish, or improve the Feedback in Burley’s sole discretion. You understand that Burley may treat Feedback as nonconfidential.
9. Repeat Infringer Policy; Copyright Complaints
In accordance with the Digital Millennium Copyright Act and other applicable law, we have adopted a policy of terminating, in appropriate circumstances, the accounts of users who repeatedly infringe the intellectual property rights of others. If you believe that anything on our Site infringes any copyright that you own or control, you may notify Burley’s designated agent as follows:
Designated Agent: Copyright Agent
Address: 1500 Westec Drive Eugene, OR 97402
Telephone Number: 1-800-311-5294
E-Mail Address: [email protected]
Please see 17 U.S.C. § 512(c)(3) for the requirements of a proper notification. Also, please note that if you knowingly misrepresent that any activity or material on our Site is infringing, you may be liable to Burley for certain costs and damages.
10. Third-Party Content
We may provide information about third-party products, services, activities or events, or we may allow third parties to make their content and information available on or through our Site (collectively, “Third-Party Content”). We provide Third-Party Content as a service to those interested in such content. Your dealings or correspondence with third parties and your use of or interaction with any Third-Party Content are solely between you and the third party. Burley does not control or endorse, and makes no representations or warranties regarding, any Third-Party Content, and your access to and use of such Third-Party Content is at your own risk.
11. Terms of Sale
The Terms of Sale set forth in this Section 11 apply if you use our site to purchase any Products.
11.1 Order Eligibility. To complete your purchase, you must have a valid billing and shipping address within the United States. We do not ship to PO, APO or FPO boxes. We make no promise that Products available on our Site are available for use in locations outside of the United States. Note that promotions are not eligible for all orders. For example, free shipping promotions are restricted to the 48 contiguous states only. In addition, use of certain coupons or discount codes may make your order ineligible for free shipping.
11.2 Product Availability, Display, and Specifications. All features, content, specifications, and prices of Products described or depicted on our Site are subject to change at any time without notice. We attempt to ensure that information on our Site is complete, accurate, and current. Despite our efforts, the information on our Site may occasionally be inaccurate, incomplete, or out of date. We make no representation as to the completeness, availability, accuracy or currency of any information on our Site, and we cannot guarantee that the image you see on your monitor or mobile device will exactly match the Product.
11.3 Purchase Restrictions and Quantity Limits. You may only purchase Products for personal use, either by you or your intended recipient of our Products. Our Products are not authorized for resale. We may place a limit on the quantities that may be purchased per order, per credit card, per person, or per household.
11.4 Order Processing, Shipping, and Errors. You will have the opportunity to review and confirm your order prior to placing it. We send you an email when we accept your order and our acceptance will be complete at that time. We will arrange for shipment of our Products to you. We process and ship orders from our Oregon warehouse on business days (Monday-Friday), excluding holidays, and orders typically ship 1-2 business days after processing. You will pay all shipping and handling charges specified during the ordering process. You will receive an email with tracking information, typically within 12 hours of shipment. Title and risk of loss in any Products you purchase pass to you when the shipping carrier receives the goods from Burley. Shipping and delivery dates are estimates only — actual delivery dates may vary. We are not liable for any delays in shipments. We reserve the right to refuse or cancel any order prior to delivery. For example, if there are errors on our Site or made in connection with your order, inaccuracies in Product or pricing information or Product availability, we reserve the right to correct the error and charge you the correct price or cancel your order. We also may require verification of information prior to the acceptance and/or shipment of any order. We will contact you if any portion of your order is cancelled or if additional information is required to accept your order. Occasionally, the manufacture or distribution of a certain Product may be delayed. In such event, we will make reasonable efforts to notify you of the delay and keep you informed of the revised delivery schedule.
11.5 Price. Prices shown on our Site exclude all taxes or charges for shipping and handling. Applicable taxes, where required, and shipping and handling costs will be added to the amount of your purchase and itemized on the check-out page. You will have an opportunity to review taxes and delivery costs before you confirm your purchase. All prices on our Site are subject to change at any time without notice.
11.6 Payment. Our Site offers different payment options. We reserve the right to change our payment options at any time and for any reason. Payment must be received by us before our acceptance of an order. When you provide credit card information or other information necessary to facilitate payment to us or our vendors, you represent to us that (a) you are the authorized user of the credit card that is used to pay for our Products; (b) the credit card information you supply to us is true, correct and complete; (c) charges incurred by you will be honored by your credit card company; and (d) you will pay charges incurred by you at the posted prices, including shipping and handling charges and all applicable taxes, if any, regardless of the amount quoted on our Site at the time of your order. In the event legal action is necessary to collect on balances due, you will reimburse us and our vendors or agents for all expenses incurred to recover sums due, including attorneys’ fees and other legal expenses. Credits or refunds will be made to the same method of payment and account used to place the order.
11.7 Returns. OUR RETURN POLICY IS IN ADDITION TO ANY STATUTORY RIGHTS YOU MAY HAVE UNDER LAW. Your satisfaction is very important to us. We hope that you will be pleased with your Product. However, if for any reason you decide to return a Product that you purchased from our Site, you must notify Burley and return the Product to us within thirty (30) days from the date the Product was purchased. Items designated as “closeout” or “factory second sale” at checkout are non-refundable and not eligible for return. Burley will not accept returns of Products purchased from other retailers. Those Products are subject to that retailer’s return policies and Burley disclaims any liability with respect to the return of such Products. Additionally, Burley will not accept a return if the Product:
- is not purchased from our Site;
- has been used;
- is not in its original condition and packaging; or
- is returned from outside of the United States
Burley does not take title to returned Products until the Product is received by Burley. Once the Product you are returning has been received and processed, Burley will notify you via email and issue a refund to the original payment method used to purchase the Product. For items given or received as a gift, Burley is only able to issue a refund to the payment method used by the purchaser. The refund amount will include the purchase price of the returned Product and any associated sales tax, except that Burley reserves the right to charge a 15% restocking fee on certain items, in our discretion. Unless prohibited by law, any shipping and handling charges paid for the original purchase will not be refunded. Depending upon your payment method, the refunded amount typically appears within 5-7 business days after Burley processes your return, but it may take longer to show up on your billing statement depending upon the payment method and your billing cycle.
To initiate a return, please follow the steps explained here. We may deny any return if it fails to meet the return criteria set forth above.
11.8 Limited Warranty. Burley offers a limited warranty for certain Products in accordance with the terms of its published limited warranty (the “Limited Warranty”), which you can review here. All warranty claims are subject to the terms of the Limited Warranty.
12. Disclaimers and Release
Your use of our Products or Site is at your sole risk. Except as otherwise provided in our Limited Warranty, and to the extent permitted by law, our Products and Site and any content therein are provided “as is” and “as available” without warranties of any kind, either express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. In addition, Burley does not represent or warrant that our Site or Products are accurate, complete, reliable, current or error-free. While Burley attempts to make your use of our Site (as well as any content in our Site) safe, we cannot and do not represent or warrant that our Site or servers are free of viruses or other harmful components, and you assume the entire risk as to the quality and performance of our Site.
To the fullest extent permitted by applicable law, you release Burley and the other Burley Parties from responsibility, liability, claims, demands and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to (a) your use of our Products or Site; (b) disputes between users of our Site; and (c) the acts or omissions of third parties. If you are a consumer who resides in California, you hereby waive your rights under California Civil Code § 1542, which provides: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”
To the fullest extent permitted by applicable law, you will indemnify, defend and hold harmless Burley and our future subsidiaries and affiliates, and each of our respective officers, directors, agents, partners and employees (individually and collectively, the “Burley Parties”) from and against any losses, liabilities, claims, demands, damages, expenses or costs (“Claims”) arising out of or related to (a) your access to or use of our Products or Site; (b) your User Content or Feedback; (c) your violation of these Terms; (d) your violation, misappropriation or infringement of any rights of another (including intellectual property rights or privacy rights); or (e) your conduct in connection with our Products or Site. You agree to promptly notify Burley Parties of any third-party Claims, cooperate with Burley Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys’ fees). You also agree that the Burley Parties will have control of the defense or settlement, at Burley‘s sole option, of any third-party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Burley or the other Burley Parties.
14. Limitation of Liability
To the fullest extent permitted by applicable law, Burley and the other Burley Parties will not be liable to you under any theory of liability—whether based in contract, tort, negligence, strict liability, warranty, or otherwise—for any indirect, consequential, exemplary, incidental, punitive or special damages or lost profits, even if Burley or the other Burley Parties have been advised of the possibility of such damages.
The total liability of Burley and the other Burley Parties for any claim arising out of or relating to these Terms, our Products, or our Site, regardless of the form of the action, is limited to the greater of $500 or the amount you have paid to Burley in connection with purchase of our Products.
The limitations set forth in this Section 14 will not limit or exclude liability for the gross negligence, fraud or intentional misconduct of Burley or the other Burley Parties or for any other matters in which liability cannot be excluded or limited under applicable law. Additionally, some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you.
15. Transfer and Processing Data
In order for us to make our Site available to you, you agree that we may process, transfer and store information about you in the United States and other countries, where you may not have the same rights and protections as you do under local law.
16. Dispute Resolution; Binding Arbitration
Please read the following section carefully because it requires you to arbitrate certain disputes and claims with Burley and limits the manner in which you can seek relief from us, unless you opt out of arbitration by following the instructions set forth below. No class or representative actions or arbitrations are allowed under this arbitration agreement. In addition, arbitration precludes you from suing in court or having a jury trial.
No Representative Actions. You and Burley agree that any dispute arising out of or related to these Terms, our Products, or our Site is personal to you and Burley and that any dispute will be resolved solely through individual action, and will not be brought as a class arbitration, class action or any other type of representative proceeding.
Arbitration of Disputes. Except for small claims disputes in which you or Burley seeks to bring an individual action in small claims court located in the county of your billing address or disputes in which you or Burley seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, you and Burley waive your rights to a jury trial and to have any dispute arising out of or related to these Terms, our Products, or our Site resolved in court. Instead, for any dispute or claim that you have against Burley or relating in any way to these Terms, our Products, or our Site, you agree to first contact Burley and attempt to resolve the claim informally by sending a written notice of your claim (“Notice”) to Burley by email at [email protected] or by certified mail addressed to 1500 Westec Drive, Eugene, OR 97402. The Notice must (a) include your name, residence address, email address, and telephone number; (b) describe the nature and basis of the claim; and (c) set forth the specific relief sought. Our notice to you will be similar in form to that described above. If you and Burley cannot reach an agreement to resolve the claim within thirty (30) days after such Notice is received, then either party may submit the dispute to binding arbitration administered by JAMS or, under the limited circumstances set forth above, in court. All disputes submitted to JAMS will be resolved through confidential, binding arbitration before one arbitrator. Arbitration proceedings will be held in Lane County, Oregon or may be conducted telephonically or via video conference for disputes alleging damages less than $5,000, unless you are a consumer, in which case you may elect to hold the arbitration in your county of residence in accordance with the JAMS Streamlined Arbitration Rules and Procedures (“JAMS Rules”). For purposes of this Section 16, you will be deemed a “consumer” if you use our Products and Site for your personal, family or household purposes. The most recent version of the JAMS Rules are available on the JAMS website and are hereby incorporated by reference. You either acknowledge and agree that you have read and understand the JAMS Rules or waive your opportunity to read the JAMS Rules and waive any claim that the JAMS Rules are unfair or should not apply for any reason.
You and Burley agree that these Terms affect interstate commerce and that the enforceability of this Section 16 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, these Terms and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. The arbitrator may conduct only an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
The arbitrator, Burley, and you will maintain the confidentiality of any arbitration proceedings, judgments and awards, including, but not limited to, all information gathered, prepared and presented for purposes of the arbitration or related to the dispute(s) therein. The arbitrator will have the authority to make appropriate rulings to safeguard confidentiality, unless the law provides to the contrary. The arbitration will allow for the discovery or exchange of non-privileged information relevant to the dispute. The duty of confidentiality does not apply to the extent that disclosure is necessary to prepare for or conduct the arbitration hearing on the merits, in connection with a court application for a preliminary remedy or in connection with a judicial challenge to an arbitration award or its enforcement, or to the extent that disclosure is otherwise required by law or judicial decision.
You and Burley agree that for any arbitration you initiate, you will pay the filing fee (up to a maximum of $250 if you are a consumer), and Burley will pay the remaining JAMS fees and costs. For any arbitration initiated by Burley, we will pay all JAMS fees and costs. You and Burley agree that the state or federal courts of the State of Oregon and the United States sitting in Lane County, Oregon have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
To the extent permitted by law, any claim arising out of or related to these Terms, our Products, or our Site must be filed within one year after such claim arose; otherwise, the claim is permanently barred, which means that you and Burley will not have the right to assert the claim.
You have the right to opt out of binding arbitration within 30 days of the date you first accepted the terms of this Section 16 by sending an email to [email protected]. In order to be effective, the opt–out notice must include your full name and address and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve disputes in accordance with Section 18.
If any portion of this Section 17 is found to be unenforceable or unlawful for any reason, (a) the unenforceable or unlawful provision shall be severed from these Terms; (b) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Section 17 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 17; and (c) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 17 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 17 will be enforceable.
17. Governing Law and Venue
Any dispute arising from these Terms or your use of our Products or our Site will be governed by and construed and enforced in accordance with the laws of Oregon, except to the extent preempted by U.S. federal law, without regard to conflict of law rules or principles (whether of Oregon or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court will be resolved in the state or federal courts of Oregon and the United States, respectively, sitting in Lane County, Oregon.
We reserve the right to modify our Products or Site or to suspend or stop providing all or some of our Products or all or features of our Site at any time. You also have the right to stop using our Products or Site at any time. We are not responsible for any loss or harm related to your inability to access or use our Site.
If any provision or part of a provision of these Terms is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions.
The failure of Burley to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third–party beneficiary rights upon any other person or entity. You agree that communications and transactions between us may be conducted electronically.